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Insurer, Insurer-Retained Counsel, Insured: A Reexamination of Conflict of Interest in the Tripartite Relationship

Last year a crash at the Dallas/Fort Worth International Airport prompted concern about the ethical propriety of attorneys soliciting prospective clients. While the media focused on this issue, we reflected on the ethical problems that confront an attorney selected by the insurer to represent the prospective defendants, which often include the manufacturer of the airplane, the airline, and the airline's agents and employees. The interests of the potential defendants, their insurers and insurer-selected counsel may actually or potentially conflict. How to accommodate these differing interests in the burgeoning field of tort litigation is the subject of this article. The article focuses upon the need to establish a uniform rule to alleviate conflicts of interest between insurer and insured – conflicts that divide the loyalties of attorneys retained by insurers to represent insureds. After reviewing the background of the conflict and the applicable rules of professional responsibility, we will analyze Texas law and propose a rule that will reduce the conflict burden on the insurer, insured, and counsel.